In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3385

David Sherrod,

Plaintiff-Appellant,

v.

Darlene Lingle, R.N.; Mary Geiger, R.N.;
Betty Lorance, R.N.; C.P. Ramaswamy, M.D.;
Rajendra Shroff, M.D.; Franklin Hospital
District,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Illinois, East St. Louis Division.
No. 97 C 63--David R. Herndon, Judge.


Argued April 5, 2000--Decided July 27, 2000



       Before Manion, Kanne and Evans Circuit Judges.

      Kanne, Circuit Judge. David Sherrod suffered a
ruptured appendix and related complications that
required emergency surgery to remove part of his
colon in 1995. He blames these problems on the
medical staff at Big Muddy River Correctional
Center ("BMRCC"), where Sherrod was a prisoner,
and Franklin Hospital District, which operates
the hospital where he was treated. Sherrod
brought a three-count complaint, alleging that
the prison medical staff violated his Eighth
Amendment right to be free from cruel and unusual
punishment and medical negligence against both
the prison and hospital staffs. The district
court dismissed the constitutional claim after
finding that Sherrod had not shown that the
prison medical staff was deliberately indifferent
to his health condition. The state law negligence
claims were dismissed after the court barred
Sherrod’s experts as a discovery sanction and
found that he failed to comply with the pleading
and filing requirements of Illinois law. We
affirm the dismissal of the case against
defendant Franklin Hospital District as time-
barred but reverse dismissal of the remaining
counts.

I.   History
      Medical care at BMRCC is provided in the Health
Care Unit, which is separate from the prisoner
cellblocks. The unit has an in-house nursing
staff, including defendants Darlene Lingle, Mary
Geiger and Betty Lorance, but no full-time
resident medical doctors. Instead, the prison
employs doctors to serve as medical directors and
to visit the health unit on a weekly basis. In
1995, Rajendra Shroff, who was serving as the
acting medical director, and C.P. Ramaswamy
provided inmate medical care. Sherrod first
requested medical attention on March 9, 1995, for
pain in his abdomen. Sherrod was taken to the
health unit in a wheelchair, examined by Lingle
and given an enema, which failed to relieve the
pain. Sherrod asked to be taken to a hospital,
but Lingle denied the request and admitted him to
the health unit for observation.

      The pain continued the next day, and Sherrod
again asked to be taken to the hospital.
Sherrod’s symptoms included right lower quadrant
abdominal pain, pain on palpation and pain with
eating or moving, which can be symptoms of
appendicitis. Lingle and Geiger refused to send
him to the hospital, but acknowledged the risk of
appendicitis with the cryptic note "rule out
appendicitis." It is unclear from the record
whether this note indicates the nurses had ruled
out appendicitis, or were instructing that tests
be done to determine whether the symptoms were
caused by appendicitis. The nurses communicated
with Ramaswamy, who alerted them of the risk of
appendicitis, but did not order Sherrod be taken
to the hospital./1

      On March 11, Sherrod again complained of
worsening pain in his abdomen. Geiger again noted
"rule out appendicitis" but did not contact a
doctor, authorize transportation to the hospital
or treat Sherrod’s pain. Again on March 12,
Sherrod complained of pain, but was not examined
by a doctor. Lorance again noted "rule out
appendicitis." Sherrod was discharged from the
health unit on March 13, although he continued to
complain of abdominal pain and lack of bowel
activity. Throughout the first several days of
Sherrod’s illness, his complaints of pain and
other symptoms fluctuated from minimal to acute,
at times corresponding to the administration of
pain medication, as one might expect.

      Ramaswamy visited Sherrod in his cell on March
14 to discuss an error in medication. Ramaswamy
did not examine Sherrod despite his continuing
complaints of abdominal pain. A prison officer
ordered Sherrod taken to the health unit on March
16, apparently because his abdominal pain had
become severe. Lingle and Geiger reproached the
guards for bringing a patient to the health unit
without permission and allegedly said there was
nothing wrong with Sherrod. Sherrod was holding
his side and walking bent over. There were no
bowel sounds and his abdomen appeared swollen,
both of which are signs of appendicitis. The
nurses admitted him to the health unit, but did
not contact a doctor.

      On March 17, Shroff sent Sherrod to the
emergency room at Franklin Hospital. Sherrod was
examined by Dr. Richard O’Hair, who found a mass
in the right upper quadrant of Sherrod’s abdomen.
O’Hair prescribed pain medication and
administered the first shot of medication. O’Hair
then ordered Sherrod to return for more tests on
March 20 and sent Sherrod back to the prison. The
next day, the pain had worsened and Sherrod could
not stand up. He had an elevated temperature and
diminished bowel sounds. A nurse again noted
"rule out appendicitis" on Sherrod’s chart. The
symptoms continued on March 19, but Geiger did
not contact a doctor. A nurse contacted Shroff on
March 20 and reported that the symptoms continued
and asked for approval to send Sherrod to the
hospital. Shroff refused, despite O’Hair’s order
to return Sherrod to the hospital for tests, and
directed that Sherrod be given Tylenol No. 3 pain
medication. Shroff did not examine Sherrod.

      Ramaswamy was told on March 21 that Sherrod had
a fever and severe pain. He ordered an abdominal
x-ray but never reviewed the x-ray report.
Ramaswamy also did not order Sherrod to the
hospital, despite Sherrod’s symptoms and O’Hair’s
directions. On March 22, Sherrod was taken to
Franklin Hospital and given a barium enema, which
revealed a lucent defect at the ascending portion
of the colon near the secum. The radiologist
recommended a repeat examination. On March 23,
Sherrod returned to the hospital for gall bladder
and upper gastrointestinal tests. Ramaswamy told
Sherrod that the results were negative and there
was nothing medically wrong with him. Sherrod
asked to be taken to a different hospital, but
Ramaswamy refused. On March 24, Sherrod’s blood
pressure had dropped to 92/70 and he was stooped
over in intense pain. Sherrod was taken to St.
Mary’s Hospital where emergency surgery was done
for a ruptured appendix and a gangrenous bowel.
Afterward, Lorance admitted that she knew Sherrod
had been suffering from appendicitis.

      In January 1997, Sherrod filed a three-count
complaint in federal district court against the
prison medical staff, Franklin Hospital and the
hospital’s medical staff. Count One of the
complaint alleged, pursuant to 42 U.S.C. sec.
1983, that the prison medical staff deprived
Sherrod of adequate medical care in violation of
the Eighth Amendment. Counts Two and Three
averred pendent state-law claims of medical
malpractice against the prison doctors, O’Hair
and Franklin Hospital. A physician’s report and
certificate of merit were attached to the
complaint as required by Illinois law. The
physicians and Franklin Hospital sought dismissal
of the complaint on the ground that the
physician’s report was inadequate. On November 5,
1997, District Judge J. Phil Gilbert agreed with
the defendants and dismissed Count Three with
leave for Sherrod to amend, which he did on
November 26, 1997, with a new physician’s report.
On December 5, 1997, Judge Gilbert dismissed
Count Two against the prison doctors on the same
ground, but without leave to amend.

      On November 18, 1997, the magistrate entered a
pretrial discovery order directing that all
discovery be completed by June 5, 1998. The court
extended that time limit to December 30, 1998,
and both sides continued taking depositions
through early December. There were difficulties
and delays in taking the defendants’ depositions,
which delayed the completion of the plaintiff’s
experts’ reports. Before the deadline, Sherrod
released his list of experts to testify at trial,
but did not disclose the experts’ reports,
believing that Rule 26(a)(2) of the Federal Rules
of Civil Procedure only required disclosure of
expert opinion reports ninety days before trial.

      On a motion for summary judgment, District
Judge David R. Herndon dismissed Count One after
finding that Sherrod could not prove the prison
staff had shown deliberate indifference to his
medical needs. The district court also granted
summary judgment on Count Three for Franklin
Hospital District, finding that the allegations
against the hospital did not constitute such
gross negligence as to excuse the plaintiff’s
state-law duty to present expert testimony. Since
Sherrod’s experts had been barred as a discovery
sanction, he could not meet the proof
requirements to prevail on the malpractice claim.

II.   Analysis

      With judgment entered on all three counts,
Sherrod appeals the grant of summary judgment on
Counts One and Three, the exclusion of his
medical experts that led to the judgment on Count
Three and the dismissal of Count Two. We review
de novo a district court’s entry of summary
judgment, accepting the facts in the light most
favorable to the non-moving party. See Anderson
v. Liberty Lobby, Inc., 

, 255 (1986);
see also Reed v. McBride, 

, 852 (7th
Cir. 1999). Discovery sanctions for failure to
comply with Rule 26(a)(2) are reviewed for abuse
of discretion. See Miksis v. Howard, 

, 758 (7th Cir. 1997). A court does not abuse
its discretion "unless one or more of the
following circumstances is present: (1) the
record contains no evidence upon which the court
could have rationally based its decision; (2) the
decision is based on an erroneous conclusion of
law; (3) the decision is based on clearly
erroneous factual findings; or (4) the decision
clearly appears arbitrary." 

v.
United Airlines, 

, 495 (7th Cir.
1996)).

A.   Deliberate Indifference

      The district court granted summary judgment on
Count One, a decision we review de novo. Chavez
v. Cady, 

, 902 (7th Cir. 2000).
Summary judgment may be granted only when there
exist no genuine issues of material fact and the
movant is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56. If after our plenary
review of the record, we find that a genuine
issue of material fact exists, we will reverse
the summary judgment and order a trial. See Reed
v. McBride, 

, 852 (7th Cir. 1999).

      To prevail on an Eighth Amendment claim, a
plaintiff must show that the responsible prison
officials were deliberately indifferent to his
serious medical needs. See Farmer v. Brennan, 

, 837 (1994); Dunigan ex rel. Nyman v.
Winnebago County, 

, 590 (7th Cir.
1999). Deliberate indifference involves a two-
part test. The plaintiff must show that (1) the
medical condition was objectively serious, and
(2) the state officials acted with deliberate
indifference to his medical needs, which is a
subjective standard. See 

(citing 

).

      The district court found that an inflamed
appendix is objectively serious, and there is no
reason to doubt that ruling. A condition is
objectively serious if the failure to treat it
"could result in further significant injury or
the ’unnecessary and wanton infliction of pain.’"
Gutierrez v. Peters, 

, 1373 (7th
Cir. 1997) (quoting McGuckin v. Smith, 

, 1060 (9th Cir. 1992)). As we found recently
in a very similar case, an appendix on the verge
of rupturing easily meets this standard. See

(affirming ruling that an
inflamed appendix is a serious medical need).

      The subjective standard requires the court to
find that the official "knows of and disregards
an excessive risk to inmate health or safety; the
official must both be aware of facts from which
the inference could be drawn that a substantial
risk of serious harm exists, and he must also
draw the inference." 

.
Whether a prison employee acted with deliberate
indifference presents a question of fact. See
Maclin v. Freake, 

, 889 n.3 (7th Cir.
1981). The district court ruled that the prison
medical staff "did not simply ignore Sherrod"
because he "received continuous medical treatment
by Defendants." The district court erred in two
respects.

      First, the district court impermissibly resolved
questions of material fact in favor of the
defendants and relied on those to determine that
the prison medical staff did not show deliberate
indifference. In its very brief discussion of the
issue, the district court found that Sherrod’s
symptoms on March 10, 1995, "did not match those
of appendicitis." Because Sherrod’s condition
worsened in the ensuing days, the requisite
excessive risk to his health may have arose and
been disregarded sometime between March 10 and
March 24, when he finally received the
appropriate treatment for his condition. Focusing
solely on the symptoms as they appeared on March
10, constituted reversible error.

      Also, Sherrod’s symptoms clearly matched some of
the symptoms of appendicitis after March 9, when
he first complained to the medical staff. He had
abdominal pain in the right lower quadrant on
March 10, which first tipped the medical staff to
the possibility of appendicitis, and later
exhibited other symptoms including diminished
bowel activity, a swollen abdomen, an elevated
temperature and worsening pain. The absence of
some symptoms might convince a jury that the risk
of a ruptured appendix was not sufficiently known
or disregarded, but the district’s court’s
finding that his symptoms "did not match those of
appendicitis," resolved a genuine factual issue
in the defendants’ favor.

      Evidence also showed that the defendants knew
there was a risk of appendicitis, which they
continually documented in his charts. A jury
could understand the notation "rule out
appendicitis" to mean that sufficient tests
should be performed to eliminate that as a
potential cause of Sherrod’s pain. However, the
staff never performed the tests needed to rule
out appendicitis. If they had, they would have
discovered Sherrod did in fact have appendicitis.
Evidence also suggests Sherrod may not have been
examined by a doctor until several days after his
first complaint, yet the district court resolved
this question in the defendants’ favor as well.
That Sherrod’s condition was not ameliorated by
the liquid diet, enemas and pain pills prescribed
by the medical staff also could have indicated a
known risk of appendicitis. The district court
found these measures indicative of the staff’s
attention to his condition, but a jury could have
reasonably found them to indicate disregard of a
serious risk to Sherrod’s health. The evidence,
when resolved in Sherrod’s favor, raises
questions of material fact as to whether the
prison medical staff exhibited deliberate
indifference by returning Sherrod to his cell
despite the appendicitis symptoms, thereby
precluding summary judgment for the defendants.

      Second, while Farmer does not permit claims for
mere 

, or claims
alleging that a reasonable medical judgment
unfortunately led to a bad result, see Snipes v.
DeTella, 

, 591 (7th Cir. 1996), a
prisoner is not required to show that he was
literally ignored by the staff. If knowing that
a patient faces a serious risk of appendicitis,
the prison official gives the patient an aspirin
and an enema and sends him back to his cell, a
jury could find deliberate indifference although
the prisoner was not "simply ignored." The
question mandated by Farmer is whether the
official knew of and disregarded an excessive
risk to the inmate’s health, not whether the
inmate was ignored. The district court’s analysis
emphasizes the fact that "defendants did not
simply ignore" Sherrod, which misconstrues the
Farmer standard. Applying the appropriate test,
and recognizing that Sherrod has presented
evidence which might prove that the prison staff
knew of and disregarded a serious risk to his
health, precludes the entry of summary judgment
as to Count One.

B.   Discovery Sanctions

      Sherrod’s experts, Drs. Satish Kapoor and Alfred
Frankel, were excluded as a sanction for
Sherrod’s failing to disclose their reports to
the defendants by December 30, 1998, the date
scheduled for the close of all discovery. Sherrod
contends the district court abused its discretion
by imposing the sanction even though he had
substantially complied with the terms of Rule
26(a)(2).

      Rule 26(a)(2)(C) directs each party to disclose
its expert opinion reports "at the times and in
the sequence directed by the court." Fed. R. Civ.
P. 26(a)(2)(C). In the absence of other
directions from the court, "the disclosures shall
be made at least 90 days before the trial date .
. . ." 

must contain, among a list
of other things, "a complete statement of all
opinions to be expressed and the basis and
reasons therefor." Fed. R. Civ. P. 26(a)(2)(B).
The magistrate’s initial discovery order directed
that "[a]ll discovery shall be completed by June
5, 1998," but the district court later extended
the deadline to December 30, 1998. The order was
not specific as to whether the disclosure of
expert opinion reports was to take place before
December 30, 1998, or simply ninety days before
trial as allowed by the rule. Because no trial
date was set, Sherrod did not believe he needed
to disclose the reports. However, Sherrod
disclosed the names of both experts and their
preliminary reports before the deadline. Sherrod
wished to supplement the preliminary reports once
his experts were able to review the deposition
testimony of the defendants and other witnesses,
which did not occur until shortly before the
discovery deadline. He moved to reopen discovery
after December 30 so that he could file the
updated reports, but the request was denied.

      Instead, the district court imposed sanctions
under Rule 37(c)(1), which states that a "party
that without substantial justification fails to
disclose information required by Rule 26(a) or
26(e)(1) shall not, unless such failure is
harmless, be permitted to use as evidence at a
trial . . . any witness or information not so
disclosed." Fed. R. Civ. P. 37(c)(1). We review
for abuse of discretion a district court’s ruling
to exclude expert witnesses as a sanction under
Rule 37. See Salgado v. General Motors Corp., 

, 739 (7th Cir. 1998). However, we
recognize that in a case such as this where
exclusion necessarily entails dismissal of the
case, the sanction "must be one that a reasonable
jurist, apprised of all the circumstances, would
have chosen as proportionate to the infraction."

Reflecting this principle, Rule 37
precludes the trial judge from imposing the
exclusion sanction unless it finds the party’s
failure to comply with Rule 26(a) was both
unjustified and harmful to the opposing party.
See Fed. R. Civ. P. 37(c)(1).

      First, we reject Sherrod’s argument that the
discovery order did not include the disclosure of
the expert’s reports. Rule 26(a)(2)(C) sets the
timetable for expert disclosures at least ninety
days before trial "[i]n the absence of other
directions from the court." Fed. R. Civ. P.
26(a)(2)(C). The order clearly stated "[a]ll
discovery shall be completed" by December 30, and
the rules indicate no reason that a court when it
says "all" must also then specify what "all"
means. An order setting a deadline for "all
discovery" constitutes "other directions from the
court," and therefore the deadline for disclosure
of the experts’ reports was December 30.
Furthermore the reports must be "complete" and
include the information specified in Rule 26
(a)(2)(B). Preliminary reports, such as those
supplied by the plaintiff, do not satisfy the
express terms of the rule, and we decline
plaintiff’s suggestion that we graft a
"substantially complied" standard onto this
requirement. See 

n.6.

      However, on the facts of this case, we find the
imposition of this drastic sanction unjustified
considering the harmless nature of the
plaintiff’s failure to comply with the discovery
order. The expert witness discovery rules are
designed to aid the court in its fact-finding
mission by allowing both sides to prepare their
cases adequately and efficiently and to prevent
the tactic of surprise from affecting the outcome
of the case. See Fed. R. Civ. P. 26(a)(2)
advisory committee’s note (stating that expert
disclosure rule intended to give opposing parties
"reasonable opportunity to prepare for effective
cross examination and perhaps arrange for expert
testimony from other witnesses."); Gorby v.
Schneider Tank Lines, Inc., 

, 1018
(7th Cir. 1984); see also Klonoski v. Mahlab, 

, 271 (1st Cir. 1998). In this instance,
Sherrod disclosed the names of both retained
experts and their initial reports well before the
deadline, thus preventing the chance that unfair
surprise would hamper the defendants’ preparation
of the case. The trial still appeared a long way
off, and the defendants had plenty of time to
prepare their examinations of Sherrod’s experts.
Furthermore, because both sides were at fault for
the difficulties in scheduling depositions, which
pushed discovery up to the December deadline, the
delay in finishing the experts’ reports was
partially justified. While in most cases, a
district court would be fully within its
discretion in strictly applying the rules and
excluding reports that were incomplete or
submitted a day late, see, e.g., 

, in this instance we can see no harm
that came from Sherrod’s failure to meet the
December 30 deadline. Because Rule 37 does not
require sanctions against a non-disclosing party
if that party’s violation was harmless, the
district court abused its discretion by excluding
Sherrod’s experts without any indication that the
defendants had been harmed by his discovery
violation.

C.   Certificate of Merit

      The district court dismissed Count Two on the
alternative ground that Sherrod failed to file an
adequate physician’s certificate of merit with
his complaint as required by Illinois law.
Sherrod filed a single certificate as to all
defendants, which the district court found to be
insufficient under Illinois law.
      To minimize frivolous malpractice suits,
Illinois law requires the plaintiff to file a
physician’s certificate of merit and accompanying
report with every malpractice complaint. See 735
Ill. Comp. Stat. 5/2-622; McCastle v. Sheinkop,

, 294 (Ill. 1987). The certificate
must affirm that a qualified, licensed physician
has reviewed the case and determined that "there
is a reasonable and meritorious cause for the
filing of such action." 735 Ill. Comp. Stat. 5/2-
622. A certificate and report must be filed "as
to each defendant who has been named in the
complaint." 

abide by this
requirement "shall be grounds for dismissal." 

is mandatory, courts have
discretion to dismiss with or without leave to
amend. See 

.

      In dismissing Count Two with prejudice, the
district court erred in two respects. First,
Illinois courts liberally construe certificates
of merit in favor of the plaintiff, recognizing
the statute as a tool to reduce frivolous
lawsuits by requiring a minimum amount of merit,
not a likelihood of success. See Cammon v. West
Suburban Hosp. Med. Ctr., 

, 738-39
(Ill. App. Ct. 1998); Mueller v. North Suburban
Clinic, Ltd., 

, 250 (Ill. App. Ct.
1998). In Mueller, the court affirmed the
dismissal of a complaint because even though the
certificate and report mentioned all the
defendants in an introductory sentence, only one
defendant was mentioned again. 

Other courts have found the statute satisfied by
a single report against multiple defendants if
the report is "sufficiently broad to cover each
defendant, adequately discusses deficiencies in
the medical care given by defendants, and
establishes that a reasonable and meritorious
cause exists for filing the action." Neuman v.
Burstein, 

, 664 (Ill. App. Ct.
1992); see also Brems v. Trinity Med. Ctr., 

, 497 (Ill. App. Ct. 1998). Kapoor’s
report was not a model of specificity. It
mentioned only Shroff, Franklin Hospital and St.
Mary’s Hospital by name, but referred generally
and repeatedly to the prison nursing and medical
staff. Kapoor’s three-page report discussed
Sherrod’s symptoms and course of treatment in
some detail. It then concluded that the "prison
medical and nursing staff failed to properly
diagnose his illness in a timely fashion" because
of a lack of physician supervision and applied
improper treatment which placed Sherrod’s life in
jeopardy. This report, while not wholly
insufficient, certainly approached the borderline
of acceptable detail in a physician’s merit
review.

      Second, while the decision to dismiss with or
without prejudice is left to the sound discretion
of the court, see 

,
Illinois courts have held that when a plaintiff
fails to attach a certificate and report, then "a
sound exercise of discretion mandates that [the
plaintiff] be at least afforded an opportunity to
amend her complaint to comply with section 2-622
before her action is dismissed with prejudice."

; see also Apa v.
Rotman, 

, 804 (Ill. App. Ct. 1997).
It follows that when the certificate was filed
but failed in some technical or minor respect,
sound discretion also requires an opportunity to
amend. See 

(holding that
"the technical requirements of the statute should
not be mechanically applied to deprive a
plaintiff of his substantive rights."). Here, for
reasons that are unclear, the district court
dismissed Counts Two and Three for failure to
comply with the certificate requirement, but
granted leave to amend only for Count Three. We
agree that refusing to allow Sherrod to amend
Count Two to comply with the Illinois certificate
requirement constituted an abuse of discretion.

D.   Statute of Limitations

      In granting summary judgment for Franklin
Hospital District on the expert witness issue,
the district court did not consider the
hospital’s argument that Sherrod’s claim also was
barred by the Illinois statute of limitations for
medical malpractice suits against a local
government agency. 745 Ill. Comp. Stat. 10/8-101.
We will uphold summary judgment on any ground
that the record supports. See Simmons v. Pryor,

, 653 (7th Cir. 1993).

      Illinois law prohibits any civil action against
a "local entity or any of its employees for any
injury unless it is commenced within one year
from the date that the injury was received or the
cause of action accrued." 745 Ill. Comp. Stat.
10/8-101. The one-year limit overrides the two-
year statute of limitations for medical
malpractice claims, 735 Ill. Comp. Stat. 5/13-
212(a). See Tosado v. Miller, 

,
1081 (Ill. 1999). The malpractice claim here
arose in March 1995, more than a year before
Sherrod filed the complaint in January 1997. The
medical malpractice claim against Franklin
Hospital District is barred by the statute of
limitations.

III.   Conclusion

      Because we find questions of material fact as
to whether the prison medical staff acted with
deliberate indifference, the district court’s
grant of summary judgment on Count One is Reversed.
The district court’s order barring Sherrod’s
experts and granting summary judgment on Count
Two is Reversed, and Sherrod shall be given
reasonable additional time to file the required
expert reports. Count Three against Franklin
Hospital District is Dismissed for failure to comply
with the state statute of limitations. The case
is Remanded to district court for additional
proceedings consistent with this opinion.



/1 The case record is unclear as to whether
Ramaswamy actually examined Sherrod on March 10.
The district court’s order indicates that
Ramaswamy did examine Sherrod during the daily
sick call. However, the briefs for both Sherrod
and Ramaswamy indicate that Ramaswamy consulted
with the nursing staff, but did not see Sherrod
personally. The record is rife with other
ambiguities and contradictions, which for the
purpose of a summary judgment order, we will
construe in the light most favorable to the
plaintiff.